Authored By : Thomas Fredrick Dawson Miller, L.C. Adami

Thomas Fredrick Dawson Miller, Kt., C.J.

1. This is an appeal by the defendant under clause 10 of the Letters Patent against a judgment of Mullick, J., dated the 21st May 1917 See 41 Ind. Cas. 522--Ed. All the parties in the present suit together with Musammat Bhagbati Kuer are the owners of Mauza Rahmatpur. The respondent, who is the plaintiff in the suit, wished to have a partition of the estate and instituted batwara proceedings before the Collector under the Estates Partition Act for that purpose. Some of the defendants supported him, but Bhagbati Kuer entered an objection which the Collector disallowed and ordered the batwara to proceed. Bhagbati Kuer and another of the co-sharers thereupon instituted a title suit in the Civil Court before the Subordinate Judge of Darbhanga impleading the respondent and the appellant and other defendants in the present suit, claiming a declaration that by reason of a previous private partition which still subsisted the Mauza was not liable to be again partitioned. Both the appellant and the respondent and some 8 other defendants in the present suit contested the claim pleading amongst other defences that there had been no previous partition. Their defence failed and on the 27th April 1914 Bhagbati Kuer's suit was decreed with costs against all the contesting defendants jointly and severally. The decree was executed and the costs were recovered against the respondent alone. He thereafter instituted the present suit to recover from his so defendants their proportionate share of the costs recovered from him under the decree of the 27th April 1914. The appellant alone resisted the claim, the other defendants allowing judgment to go against them by default.

2. Apart from the question which I shall presently consider, I think it is clear that the case is one where there was a common liability on the parties and where the equitable doctrine of contribution applies in favour of the person compelled by legal process to discharge the common liability. The defence of the appellant to the present action was that the respondent, although he knew there had been a previous private partition, persuaded the appellant to join with him and others in filing a joint written statement in Bhagbati Kuer's suit raising, amongst other defences, that there had been no previous partition, although they both knew the contrary to be the fact and that the respondent promised to indemnify him against any costs that might be incurred in that suit. No defence was raised that contribution could not be claimed by reason of the parties being joint tort-feasors. Before the Munsif, however, the issues raised were:

(1) Were the plaintiff and defendants joint wrongdoers in so far as the defence in the title suit was concerned If so, is the suit maintainable

(2) Did the plaintiff contract with defendants to meet expenses of the title suit in consideration of the defendants' helping him with witnesses If so, is plaintiff estopped from suing for contribution

(3) To what relief is plaintiff entitled

3. On the second of the above issues the Munsif found that to such contract as that relied on by the appellant had been entered into. On the first issue he took the view that the defence raised in the previous action was not a bona fide defence because the respondent as well as the appellant knew that the Mauza had previously been partitioned into separate pattis. His judgment on this issue was as follows:--

The leading case on this point is the ruling reported as Suput Singh v. Imrit Tewari 5 C. 720 : 6 C.L.R. 62 : 2 Ind. Dec. (N.S.) 1066, Taken as a proposition of law the plaintiff's Pleader admits it to be binding on this Court. His contention, however, is that his defence in the title suit was not false and that it was a bona fide defence which proved to be wrong. I do not agree with him on this point. The title suit was instituted by Bhagbati Kuer as plaintiff put in a petition for partition before the Collector. Defendant No. 7 did not join the plaintiff in this petition. In the civil suit the main question of fact was as to the existence of pattis (as Exhibit 1 shows). Now the plaintiff knew and ought to have known that his act in filing the petition for partition was wrong. And he certainly knew or ought to have known the existence of the pattis. His action, therefore, in denying the existence of pattis and in resisting the suit on that ground mainly was also wrong. His deed of purchase makes mention of pattis (vide Exhibit 6) and he admits in this suit that he was aware that pattis did exist in the village. It is clear, therefore, that his initial act which gave rise to the suit and his defence which resulted in the accumulation of costs were all wrong full to the knowledge of the plaintiff and of defendant No. 7 (the present appellant), who of course admits knowledge of all these facts. The case is, therefore, governed by the principle laid down in the ruling quoted above and plaintiff and defendant No. 7 being both joint wrongdoers, this suit for contribution will not lie and I hold accordingly.

4. From this judgment the respondent appealed to the Additional Subordinate Judge, who dismissed the appeal being of opinion that the appellant and respondent were joint wrongdoers by reason of having set up a defence which they knew to be untrue. The evidence before the Court was mainly documentary, showing that a private partition had taken place a long time ago and that several co-sharers had separate pattis. A copy of the judgment of the 27th April 1914 was also exhibited. The only oral evidence given at the trial was that of the respondent himself and of Kuldip Saha, the appellant's Patwari. The Subordinate Judge found that the judgment of the 27th April 1914 showed that the respondent and the appellant had denied in that suit that there had been a private partition, although they must have known that the contrary was the fact. From the evidence of the respondent in the present suit it appears that he frankly admitted that there had been a private partition many years ago before he acquired an interest in the property but said that it was Kutcha. The meaning of this clearly is that he thought the previous partition was either of an informal character or that it otherwise failed to comply with the provisions of section 7 of the Estates Partition Act, in which case it would not be such a partition as would debar the Collector from proceeding with the batwara proceedings which the respondent had instituted. The truth is that the question of the existence of a previous partition is a mixed question of law and fact, and there is nothing reprehensible in such circumstances in denying the existence of a previous partition even if it is known that the estate has been divided into separate pattis. As the question has been raised as to the exact nature of the findings of the Subordinate Judge, it is desirable that I should set out at length that part of his judgment which deals with this question. He says:--

Now the judgment (Exhibit 1) shows that both the appellant and the respondent Mahabir denied the existence of a previous private partition altogether, but the fact that the denial was fake to their knowledge is indicated by the statement made by the appellant himself in this case. He has the good sense to tell us in this case that there actually existed a private partition from before he acquired a proprietary interest in Mauza, Rahmatpur long ago, but he adds that the partition was Kutcha. But whether the partition was Kutcha or not, the fact remains that there was a partition and that each proprietor or set of proprietors was in exclusive possession of separate pattis to the knowledge of the appellant, and so there can be no room for doubt that the total denial of the existence of a private partition was false to the knowledge of the appellant and the respondent. Matters might have stood on a different footing if the appellant had admitted the existence of the private partition and merely pleaded that it was effected without the intervention of a Court or was somehow incomplete or informal.

5. Then it will be observed that the appellant admittedly moved the Collector for partition and though the respondent did not join with him in doing so, he too approached the Collector for partition shortly after and both of them resisted when Bhagbati Kuer pleaded before the Collector and before the District Judge that there was a private partition and that the Mauza was not on that account liable to be partitioned. It seems to me, therefore, that this attempt to get the Mauza partitioned and to do away with the private partition was made by the appellant in concert with the respondent. It is true there is no direct evidence of appellant's colluding with respondent to set up a false defence.

The circumstances disclosed strongly argue in favour of such a collusion.

In such circumstances I am inclined to agree with the learned Munsif and to hold with him that the appellant and the respondent were joint wrongdoers and that the appellant cannot maintain a suit for contribution against him.

In the result the appeal fails and is dismissed. I make no order for costs.

6. Before dealing with the effect of these findings, it is desirable that I should state how the matter was dealt with by the learned Judge of this Court when the case came before him on appeal and from whose judgment the present appeal is brought. He was of opinion that even if the decision of the lower Court amounted to a finding that the plaintiff and the respondent conspired to put forward and maintain a false defence in the previous suit, this would not amount to an actionable wrong for which damages might have been recovered by the plaintiff in that suit, as he would be amply indemnified against such collusive acts by the award of costs. He was of opinion that the rule prohibiting contribution between joint tort-feasors was recognised in India, but that in the present case there was no actionable wrong to which the plaintiff and the defendants were parties and that even if the findings of the lower Appellate Court were such as he, for the purposes of his judgment, assumed them to be, still there was no reason why contribution in this case should not be allowed. At the same time he thought that if his view of the law were wrong, it might be necessary to remand the case to the lower Court for further findings.

7. In the view I take of the findings of the lower Court it is unnecessary to determine how far the learned Judge of this Court was justified in the view be took of the legal aspect of the case. I have quoted above the judgment of the Subordinate Judge at length, because it is contended that the finding is that the respondent and the appellant not only set up a false case in their written statement by way of defence to Bhagbati Kuer's suit, but conspired together to do so and then gave fake evidence in support of it as part of the conspiracy. If that were indeed the finding, it might be that the Court would not assist either party in such a conspiracy to recover from the other a contribution towards the caste incurred as the result of setting up what they knew to be a false defence and supporting it by perjury in the witness-box. But I cannot read into this judgment any intention to arrive at such a conclusion. The learned Judge finds that there is no direct evidence of the appellant colluding with the respondent to set up a false defence but agrees with the Munsif that they were joint wrongdoers. The earlier part of his judgment, in which he finds that the total denial of the existence of a private partition was false to the knowledge of the appellant and the respondent, must refer not to oral evidence given at the trial in the title suit of which there is no evidence, but to the defence pleaded in the written statement. The appellant in fact gave no evidence in that suit. This view is further borne out by the concluding passage of the first paragraph, where he refers to the matters pleaded. But in order to satisfy ourselves and obviate the necessity of a remand, we have looked at the evidence given in this case and there is not a word either in the oral evidence of the only two witnesses called or in the judgment in the title suit (Exhibit 1) which could possibly justify a finding that there was a conspiracy such as that suggested or that the respondent gave perjured evidence. It appears from Exhibit 1 that the issue framed on this question was "whether Mauza Rahmatpur, Tauzi No. 4058, has been completely and formally privately partitioned as alleged by the plaintiff." In dealing with that issue the District Judge in that judgment says: "The defence relies upon section 7 of the Act and argues that the admissions in the plaint that the lands included in Khewat 1/20 are joint disproves the fact of a complete and formal partition." He then deals at length with a number of documents and comes to the conclusion that they establish a private partition many years ago. The only witness whose evidence is referred to is one Jena Raut, who denied ever having heard of the pattis although his vendor's Khewat mentions them. The learned Judge says this shows the unreliable nature of the defence evidence. This witness is apparently singled out as one who went to great lengths but the respondent's evidence is not mentioned nor is there anything from which it can be inferred that he gave false evidence. The respondent in his evidence in the present suit admitted he knew of the existence of separate pattis but contended that they only indicated what be calls a Kutcha partition, and there is nothing to show that he gave evidence inconsistent with this in the title suit. It would be useless, therefore, to remand this case which was instituted four years ago for findings on a point which on the evidence could only be decided in the respondent's favour. It must be taken that the finding of the Subordinate Judge that the appellant and respondent were joint wrongdoers is based on the fact that by their written statement they denied the existence of an earlier formal private partition. As already pointed out, this is a mixed question of law and fact and was a perfectly legitimate plea. In any case there is nothing wrong in a defendant patting the plaintiff to proof of the facts necessary to prove his claim by denying in the written statement the existence of such facts. It is for the plaintiff to prove his case and if his proof fails, the defendant will succeed even if the facts are capable of proof to the knowledge of the defendant. To hold that it is a tort for the defendant by his pleadings to deny a fact which he knows to be true even if he has no evidence to the contrary, is a proposition which cannot be supported on any known principle of law. It follows, therefore, that on the facts found by the lower Court the parties were not wrongdoers in the sense which would debar contribution between them. The case of Surput Singh v. Imrit Tewari 5 C. 720 : 6 C.L.R. 62 : 2 Ind. Dec. (N.S.) 1066, relied on by the Munsif is certainly no authority for the proposition that there is no right of contribution between joint defendants in respect to the costs awarded against them and paid by one' of them in an action in which they knew that the facts pleaded in the defence could not be established. The costs in that case were awarded against the plaintiff and the defendant in an action for tort, the tort consisting in cutting down trees the property of the plaintiff in the original suit. The only question for consideration was whether notwithstanding that the original suit was grounded in tort, the defendants were wrongdoers in the sense that they knew or ought to have known that they were doing an illegal or wrongful act or whether the acts complained of were not in fact committed under a bona fide claim of right. The case was remanded for findings upon this point, but so far from establishing the appellant's contention it recognises that there may in certain cases be contribution even between tort-feasors. This also was the view of Lord Hereon ell, L.C., and Lord Watson in Palmer v. Wick Steam Shipping Co., Ltd. (1894) A.C. 318 : 6 R. 245 : 71 L.T. 163, in which the former ex-pressed the view that although it was now too late to question the decision in Mereyweather v. Nixan (1799) 8 T.R. 186 : 16 R.R. 810 : 101 E.R. 1337 : 1 Sm. L.C. (12th Ed.) 413, it did not appear to be founded on any principle of justice or equity which would justify its extension to the jurisprudence of other countries. That the rule of non-contribution between joint tort feasors exists in India cannot, I think, be questioned, but the authorities appear to show that it ought only to apply in cases where the parties are wrongdoers in the sense that they knew or ought to have known that they were doing an illegal or wrongful act [Sreeputty Roy v. Loharam Roy 7 W.R. 384 : B.L.R. Sup. Vol. 687]. In the case now under consideration the act relied on by the appellant is the setting up of a defence to a suit which the defendants in that suit knew could not be substantiated in fact and that they combined together for that purpose. This was, in my opinion, a perfectly legitimate act for the reasons already given, and it is an abuse of language to describe a combination for the purpose of carrying out a lawful act as collusion or conspiracy. Nor are we concerned in any way with the motives which influenced that action. They may have been malicious or they may have been morally unimpeachable, but in neither case would the Court be justified in treating as a tort that which was not legally wrongful. Viewed from this standpoint I agree with the conclusions arrived at by the learned Judge of this Court, although I think he expressed the legal principle upon which he acted in language of too wide import which, if taken as of general application and apart from the facts of this case, may be misleading. He says that a conspiracy to put forward and maintain a false defence is not a wrong for which the law allows a remedy by an action for damages. If this is limited to a defence put forward by the pleadings I agree with the proposition intended to be laid down, but the word conspiracy does not appear to me to be an apt term for expressing such a case. Indeed the language used might lead to the conclusion that it was not a wrongful act to conspire together to commit perjury in support of a defence known to be unsupportable, which would in itself be a crime.

8. Certain cases were relied on by the appellant in support of the contention that where two defendants have jointly, and in collusion with each other set up a false defence which has failed and costs have been decreed against them jointly, there is no right of contribution by the one who has discharged the joint liability for costs under the decree. The first case is that of Vayangara Vadaka Vittil Manja v. Kadugochen 7 M. 89 : 2 Ind. Dec. (N.S.) 647. It does not appear from the report whether the costs were incurred in an action for tort or not. The Munsif found that the costs awarded were in the nature of a fine as compensation for damages and dismissed the suit. The High Court found that the plaintiff was in fact the real defendant in the former suit and that the defendant was merely a Kanomdar and further that they colluded together in order to defeat the plaintiff in the previous suit. They considered that they were bound by the principles Hid down in the case of Suput Singh v. Imrit Tewari 5 C. 720 : 6 C.L.R. 62 : 2 Ind. Dec. (N.S.) 1066 (ubi sup.) and that the plaintiff was not entitled to contribution from the defendant. The judgment appears to have been based upon the fact) that the plaintiff was the real defendant and that the defendant was not directly interested in the previous suit, but it recognised the general rule as to contribution between joint defendants for costs pail by one of them.

9. The case of Gobind Chunder Nundy v. Srigobind Chowdhry 24 C. 330 : 1 C.W.N. 179 : 12 Ind. Dec. (N.S.) 887 appears to have gone somewhat further. It was found that the plaintiff and defendant had combined together in a former suit to defeat the plaintiffs in that suit and with that object they pub in false defences. The learned Judges relied upon the case of Vayangara Vadaka Vittil Manja v. Kadugochen 7 M. 89 : 2 Ind. Dec. (N.S.) 647 (ubi sup.) for the proposition that where the plaintiff colluded with the defendant in a former suit to endeavour to defeat the plaintiffs there and was made liable for costs, no suit for contribution in respect to such costs would lie, and remanded the case to the lower Court for further findings. If it was the intention of the learned Judges in that case to lay down a rule that contribution cannot be recovered between co-defendants for costs paid by one of them on the ground that the defence in the previous suit denied a state of facts known by the defendants to be true, I must respectfully decline to follow that ruling, nor do I think that the proposition there broadly stated necessarily follows from the case reported as Muringa Mangalath Gopalan Nayar v. Kinyaka Kovilagath Valia Tamburathi 7 M. 87 : 2 Ind. Dec. (N.S.) 646, which was relied upon in support of it. The expression false defence, which has been used from time to time in judgments in which the question of contribution has been considered, appears to me to have led to some confusion of thought and to have induced the Courts in some cases to treat as a wrongful act that which in itself was perfectly legitimate.

10. The English case of Dearsly v. Middleweek (1880) 18 Ch. D. 236, was also relied upon for the proposition that where co-defendants are decreed to pay the costs of an action, one of them who has paid the whole of the costs cannot obtain contribution from the other. The case which is very shortly reported, the judgment consisting of about six lines, appears to have been based upon a dictum of the Court of Appeal in the case of Seal and Personal Advance Company v. McCharthy (1880) 18 Ch. D. 362 : 45 L.T. 116 : 30 W.R. 481, which had been decided on the previous day and referred to by one of the learned Counsel engaged to the effect that no apportionment of or contribution for costs could be obtained by one co-defendant against another in an independent proceeding. That case is reported at page 362 of the same volume and came before the Court of Appeal on the plaintiffs objection to taxation. One of two defendants in an action in ejectment obtained leave to withdrew his defence on the terms of his paying to the plaintiffs their costs of the action, "so far as they were occasioned by the said defence of the said defendant." Upon taxation of the plaintiffs' costs against that defendant the Taxing Master held that the only costs which such defendant was liable to pay under the order were the increased costs occasioned by such defendant having defended the action and that he was not liable to pay an apportioned part of the plaintiffs' general costs. The Court of Appeal supported the Taxing Master. One of the questions was whether part of the general costs of the action ought not to be apportioned against those defendants under the terms of the order. The dictum relied upon in Dearsly v. Middleweek (1880) 18 Ch. D. 236, was in these words: "If the appellants were right in their action, they ought to have their whole costs from the defendants or some of them. But this is Common Law action and at Common Law there is no each thing as apportionment of costs. There is an apportionment of costs in equity but it is of quite a different kind. It is an apportionment of costs between different claims." The question of contribution between co-defendants where one of them has paid the liability of both was not dealt with, and the case of Dearsly v. Middleweek (1880) 18 Ch. D. 236 appears to have been based upon a misapprehension of what was said in the earlier case. I cannot, therefore, regard this decision as an authority, conflicting as it does with the principle of contribution now well recognised.

11. The other cases relied upon by the appellant need not be referred to in detail. They were cases where the parties were clearly joint tort-feasors, or where the plaintiff seeking contribution had been the real defendant in the previous suit or where the costs in respect to which contribution was claimed had not in fact been paid by the plaintiff.

12. On the other hand the case of Brajendro Kumar Roy v. Bash Behari Roy 13 C. 300 : 6 Ind. Dec. (N.S.) 700, clearly recognises the principle upon which the right to contribution in such cases is based. In that case a decree had been obtained against the plaintiff and the defendants for damages for breach of a covenant not to open a ferry at a particular place. The decree was executed against the plaintiff alone, who thereupon brought a suit for contribution against his co-defendants in the former suit. Both the lower Courts dismissed the suit on the ground that the plaintiff and the defendants had been joint wrongdoers and that no suit for contribution would lie as between them. The High Court held that the rule relied upon by the Courts below had no application to the circumstances of the case and that the plaintiff was entitled to maintain his action. The Munsif had found that the plaintiff and the defendants made a conspiracy and opened the ferry Ghat in violation of an agreement made by them in favour of the plaintiff in the suit for damages and that they knew that they were doing an illegal or wrong act, and for that reason held the suit not tenable. The District Judge took the same opinion, holding that as the ferry had been opened in violation of an agreement previously come to, it seemed to him that this constituted the defendants wrongdoers in the sense that they knew or ought to have known that they were doing a wrong or unlawful act. The High Court came to the conclusion that both the Courts below erred in treating the plaintiff and defendants as wrongdoers. "When the Munsif speaks of a conspiracy", said Norris, J., in his judgment, "the utmost that he can mean is that the plaintiff and defendants met together and deliberately agreed to break their covenant and establish a ferry Ghat. This is not sufficient to constitute a conspiracy. To constitute a conspiracy there most be an agreement between two or more persons to do something either malum prohibitum or malum in se or to do something which they are entitled to do only by illegal means", and he came to the conclusion that the plaintiff and the defendants were guilty only of a breach of contract which would render them liable for damages under their contract but which was not in itself an actionable wrong. The Court allowed the appeal but remanded the case to the lower Court to be tried on the merits.

13. The case of Shakul Kameed Alim. Sahib v. Syed Ebrahim Sahib 26 M. 373 is another case where the Subordinate Judge had dismissed a suit for contribution partly on the ground that the parties had put in a false defence in a previous suit which had failed. The suit in which the costs were incurred was one for partition and the whole of the costs had been paid by one of the defendants who sought contribution from his co-defendants. The High Court, consisting of Sir Arnold White, C.J., and Benson, J., allowed the plaintiff's claim for contribution, as there was no tort which could bring it within the ruling of Mereyweather v. Nixan (1799) 8 T.R. 186 : 16 R.R. 810 : 101 E.R. 1337 : 1 Sm. L.C. (12th Ed.) 413.

14. It seems clear, therefore, that the doctrine of contribution is well recognised in this country and that the only cases in which it will not be enforced are those in which a liability arises out of a joint wrong or where the equities of the case demand that the plaintiff should not recover, as where the party sued was merely a formal defendant in the previous suit and not personally interested in the result of it. Again, there may be cases where it is just and proper that the liability should be apportioned in unequal shares. In the present case it seems to me that no distinction can be drawn between the respective liability of the plaintiff and defendant and that this appeal should be dismissed with costs.

L.C. Adami, J.

15. I agree.